When does reporting become breaking and entering?

Jazz ShawPosted at 9:21 am on March 29, 2018

You probably recall this story from February, though it didn’t seem to have much of a lifespan in the mainstream press. New York Magazine reporter Olivia Nuzzi was found to have gone into the home of Corey Lewandowski when he wasn’t there and taken a picture as part of a story she was working on. There may be a lawsuit or criminal trial coming out of that as a result, but the details remain unclear. It should seem obvious to one and all that Nuzzi did something wrong, but precisely how wrong was it?

That’s the question Joan Vennochi at the Boston Globe is tackling this week, and to my great surprise, she appears to find some sort of gray area. Sure, it was a crime. But was it a crime crime (to adapt a phrase from Whoopi Goldberg about rape)? She’s even able to find some experts to back up the idea that there might be a different, more flexible standard of justice for special people like reporters.

Harvey Silverglate, a criminal defense and civil liberties lawyer, notes, “The law is actually more rigorous and unforgiving in theory than in practice.” There’s wiggle room, especially for certain professions, he said, like journalists, private investigators, and documentary filmmakers.

“We live in a world where we are constantly seeking to balance risk versus reward,” said Silverglate. “But every so often we either go too far or we come upon a person who is hypersensitive to offense or intrusion or perhaps particularly vulnerable.”

To write the Hicks profile, Nuzzi knocked on many doors and interviewed many people. In a journalism world taken over by e-mail, texting, and Twitter, her dedication to old-fashioned reporting is admirable. From her account to CJR, her entry into Lewandowski’s office was not planned. It just happened.

“Wiggle room,” eh? And the law is more vigorous in theory than in practice? I would guess most of us would agree that this is how the law works in reality (just think of the various attempts to prosecute various members of the Kennedy clan over the years) but that doesn’t mean it’s how the world is supposed to work. Those exceptions happen when things fall through the cracks and nobody is paying attention, not because reporters, filmmakers or private investigators are somehow superior to the rest of the unwashed masses in the eyes of the law.

Vennochi takes the attitude that Nuzzi was on the trail of a hot story and her trespassing into Lewandowski’s home… “just happened.”

Of further interest is the part of the story where the Boston Globe reporter admits that she came within moments of committing the same sort of blunder in her foolish youth back in the 70s. Check this out. (Emphasis added)

She isn’t the first reporter to end up in an office she wasn’t invited to enter. I still recall, with chilling clarity, such an incident from several decades ago. I was a State House reporter. Michael Dukakis was governor. And Edward J. King, who had shocked Dukakis by beating him in a 1978 primary, and then losing to him in 1982, was said to be thinking about running again, this time as a Republican. An editor told me to get the story. King didn’t return a phone call, so I went to his downtown Boston office. It was a cold winter night. Lights were on, but no one was around. His office door was open and the walls were covered with grip-and-grin photos of him with other pols. I stepped over the threshold, thinking maybe there was something on his desk that would indicate his plans. Then, fear and common sense clicked in. I ran from the office, to the street, where I realized I lost a glove somewhere along the way. Discovery would have been a problem, given the libel suit King had previously filed against the Globe.

Granted, there’s something of a difference between Nuzzi’s story and Vennochi’s. Nuzzi went inside of a person’s private home and took a photograph without permission. As has been previously noted, in any fair reading of the law, she broke. She entered. Vennochi walked into an unlocked office set up by Edward King’s staff where the lights were all on. Assuming that this was a campaign office which was generally open to the public, that’s a mistake which the cops would probably let slide if it was illegal at all. Was there a “closed” sign of some sort? The average person could forgive anyone for walking in if the answer is no.

But once inside, what was the first thing to go through Vennochi’s mind? “Maybe there was something on his desk that would indicate his plans.” While she claims to have gone no further, her first impulse was to steal information from the man’s desk (in her memory, if not in the form of taking actual papers) which had not been freely offered to her in the course of doing her job.

There is no exception allowing someone to engage in breaking and entering or theft just because their job entitles them to ask a lot of questions. Excusing Nuzzi to any degree at all represents an effort to undermine the rule of law and place reporters above it. To steal from that classic commercial meme, that’s not how it works. That’s not how any of this works.